from the legal-challenges dept

While The Pirate Bay has lost all of its appeals in Sweden, one of the founders, Fredrik Neij, is apparently going to take his case to the European Courts, arguing that shutting down a site like The Pirate Bay is a violation of Article 10 of the European Convention on Human Rights. As Neij's lawyers point out, since TPB does not host or transmit any material covered by copyright, shutting it down (or fining and jailing Neij based on its usage) rejects his rights "to receive and impart information."

While I understand where he's coming from, I do worry that courts to date have been particularly bad at comprehending the fact that The Pirate Bay neither hosts nor transmits any unauthorized information. While they are seeking to make analogies, the courts seem to zero in on the way many people use the tool, rather than separating the tool from the usage.

The lawyer also notes that since the torrent file information itself wasn’t illegal, the function should be covered by Article 10. He adds that he will also ask for further scrutiny as to whether it was indeed correct to hold Fredrik Neij responsible for what other people did when they used The Pirate Bay.

“In our opinion, it is like being held guilty in court because someone delivered a letter with illegal content. Another, and perhaps even more relevant analogy, would be if the founders of a buying and selling site were found guilty after someone sold a stolen bicycle after it was advertised on the site,” Nilsson explains.

Basically, it sounds like they're going with a typical secondary liability protection argument, which makes sense in theory. Once again, however, the courts have been pretty resistant to recognizing such an argument, especially when so much of the usage is for infringing purposes and (especially) when the operators of the site were quick to mock those who challenged how much of the usage was infringing. The courts just don't have very much sympathy there. Thus, I'm not confident this will turn out all that well -- and I actually worry that the end result may be a precedent that cuts of secondary liability protections for other sites as well.

Reader Comments

Re: Re: Re: Clarity

"We are not entitled to use tools to violate the legally held rights of others."

The point you don't understand is that you are attacking the tool makers themselves rather than the people who use them. TPB and every other torrent site has perfectly legitimate uses. They do not infringe content themselves. They do not host infringing content. They don't even upload the links themselves, except perhaps the ones directly related to legal content through The Promo Bay. How is this not an attack on the tool rather than those misusing it? You are yet to explain this simple concept.

"Maybe that's the right not to be murdered, maybe it's the right not to have your copyright infringed."

Yet, you won't try to destroy the makers of the tools being misused to remove one right, but only go after the tools used to infringe on another. A strange hypocrisy don't you think?

"Keep in mind the distinction of going against sites--organized and run by people (not "technologies")--that serve no significant purpose other than infringement."

Except that argument is complete bullshit, and you know it. Whatever your opinion of TPB, it's perfectly possible to get a lot of legal content there. On a basic level, there's nothing that separates them from what you might consider 100% innocent sites, who still need to be protected from users' actions they have no control over. Stop ignoring this fact because it's inconvenient to you. Address reality, not the convenient fiction you have constructed.